Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4902 of 2013 ====================================================== 1. Sikandar Paswan Son Of Late Dukha Paswan Resident Of Village- Marar Sabalpur, P.O.- Marar, P.S.- Morkahi (Khagaria) District- Khagaria .... .... Petitioner/s Versus 1. Gayatri Devi Daughter Of Late Ishwar Pd. Sahu Resident Of Village- Maheshkhunt Bazar, P.S.- Mahesh Khunt, District- Khagaria 2. Dularmani Devi Daughter Of Late Ishwar Pd. Sahu Resident Of Village- Maheshkhunt Bazar, P.S.- Mahesh Khunt, District- Khagaria 3. Sajania Devi Daughter Of Late Ishwar Pd. Sahu Resident Of Village- Maheshkhunt Bazar, P.S.- Mahesh Khunt, District- Khagaria 4. Kaushalya Devi Wife Of Late Bishwanath Sahu Resident Of Village- Maheshkhunt Bazar, P.S.- Mahesh Khunt, District- Khagaria 5. Bhagya Devi Daughter Of Late Bishwanath Sahu Resident Of Village- Maheshkhunt Bazar, P.S.- Mahesh Khunt, District- Khagaria 6. Veena Devi Daughter Of Late Bishwanath Sahu Resident Of Village- Maheshkhunt Bazar, P.S.- Mahesh Khunt, District- Khagaria 7. Gholtu Sahu @ Ajay Sahu Maternal Grand Son Of Late Ram Kishun Sahu And Son Of Late Mungeshwar Sahu Resident Of Village- Maheshkhunt Bazar, P.S.- Mahesh Khunt, District- Khagaria 8. Sanjay Sahu Maternal Grand Son Of Late Ram Kishun Sahu And Son Of Late Mungeshwar Sahu Resident Of Village- Maheshkhunt Bazar, P.S.- Mahesh Khunt, District- Khagaria 9. Khanna Sahu Maternal Grand Son Of Late Ram Kishun Sahu And Son Of Late Mungeshwar Sahu Resident Of Village- Maheshkhunt Bazar, P.S.- Mahesh Khunt, District- Khagaria 10. Shobha Devi Daughter Of Late Muneshwar Sah And Maternal Grand Daughter Of Late Ram Kishun Sah Resident Of Village- Maheshkhunt Bazar, P.S.- Mahesh Khunt, District- Khagaria 11. Rajendra Pd. Sahu Son Of Late Gana Sahu Resident Of Village + P.O.- Marar, P.S.- Morkali, Dist.- Khagaria 12. Arjun Kumar Son Of Ishwar Pd. Sahu Resident Of Village + P.O.- Marar, P.S.- Morkali, Dist.- Khagaria 13. Madan Kumar Son Of Ishwar Pd. Sahu Resident Of Village + P.O.- Marar, P.S.- Morkali, Dist.- Khagaria 14. Ram Balak Sahu Son Of Late Ishwar Pd. Sahu Resident Of Village + P.O.- Marar, P.S.- Morkali, Dist.- Khagaria 15. Raj Dular Sahu Son Of Late Ishwar Pd. Sahu Resident Of Village + P.O.- Marar, P.S.- Morkali, Dist.- Khagaria 16. Ram Sewak Sahu Son Of Late Ishwar Pd. Sahu Resident Of Village + P.O.- Marar, P.S.- Morkali, Dist.- Khagaria 17. Narayan Prasad Sahu Son Of Bishwanath Sahu Resident Of Village + P.O.- Marar, P.S.- Morkali, Dist.- Khagaria 18. Mosmat Bimla Devi Wife Of Late Bishwanath Sahu Resident Of Village + P.O.- Marar, P.S.- Morkali, Dist.- Khagaria 19. Kaushal Kumar @ Binit Kumar Son Of Brahm Kumar Resident Of Village + P.O.- Marar, P.S.- Morkali, Dist.- Khagaria 20. Raj Kishore Sah @ Nitish Kumar Son Of Late Brahm Kumar Resident Of Village + P.O.- Marar, P.S.- Morkali, Dist.- Khagaria 2 Patna High Court CWJC No.4902 of 2013 (5) 2 / 10 21. Vivek Kumar Minor Son Of Late Brahmdeo Kumar Under The Guardianship Of His Mother Most. Bimla Devi Resident Of Village + P.O.- Marar, P.S.- Morkali, Dist.- Khagaria 22. Ram Deo Sahu Son Of Bishwanath Sahu Resident Of Village + P.O.- Marar, P.S.- Morkali, Dist.- Khagaria 23. Shayamdeo Sahu Minor Of Bishwanath Sahu, Under The Guardianship Of Bishwanath Sahu His Father, Natural Guardian And Next Friend Resident Of Village + P.O.- Marar, P.S.- Morkali, Dist.- Khagaria 24. Birendra Kumar Son Of Ramkishun Sahu Resident Of Village + P.O.- Marar, P.S.- Morkali, Dist.- Khagaria 25. Anandi Kumar Son Of Ramkishun Sahu Resident Of Village + P.O.- Marar, P.S.- Morkali, Dist.- Khagaria 26. Ajit Kumar Son Of Rajendra Prasad Sahu Resident Of Village + P.O.- Marar, P.S.- Morkali, Dist.- Khagaria 27. Anil Kumar Minor Son Of Rajendra Prasad Sahu Resident Of Village + P.O.- Marar, P.S.- Morkali, Dist.- Khagaria 28. Sunil Kumar Minor Son Of Rajendra Prasad Sahu Resident Of Village + P.O.- Marar, P.S.- Morkali, Dist.- Khagaria 29. Bandelal Paswan Son Of Late Ramoutar Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 30. Nand Lal Paswan Son Of Late Ramoutar Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 31. Mulan Paswan Son Of Late Ramoutar Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 32. Solan Paswan Son Of Late Ramoutar Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 33. Chandan Devi Daughter Of Late Ramoutar Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 34. Most. Neha Devi Wife Of Late Ramoutar Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 35. Most. Fuchia Devi Wife Of Sukhdeo Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 36. Hare Ram Paswan Minor Son Of Sukhdeo Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 37. Raja Ram Paswan Minor Son Of Sukhdeo Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 38. Awadhesh Paswan Son Of Late Mushaharu Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 39. Santosh Paswan Son Of Late Mushaharu Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 40. Budhani Devi Wife Of Late Mushaharu Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 41. Most. Bimala Devi Wife Of Late Garib Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 42. Nirmala Devi Daughter Of Late Garib Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 43. Nirjan Devi Daughter Of Late Garib Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 44. Shambhu Paswan Minor Son Of Late Garib Paswan Under The Guardianship Of Most. Bimla Devi, His Mother, Natural Guardian And Next Friend Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 3 Patna High Court CWJC No.4902 of 2013 (5) 3 / 10 45. Papoo Paswan Minor Son Of Late Garib Paswan Under The Guardianship Of Most. Bimla Devi, His Mother, Natural Guardian And Next Friend Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 46. Most. Mira Devi Wife Of Late Bhola Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 47. Dropdi Devi Daughter Of Late Bhola Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 48. Kola Paswan Son Of Dubha Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 49. Maghoo Paswan Son Of Mahabir Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 50. Lala @ Lola Paswan Son Of Sahdeo Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 51. Shankar Paswan Son Of Sahdeo Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 52. Chhatpati Paswan Son Of Ramautar Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 53. Latpathi Paswan Minor Son Of Ramautar Paswan, Under The Guardianship Of G.A.L. M.D. Shah Zoda, Advocate Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 54. Punit Paswan Son Of Accho Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 55. Prakash Paswan Son Of Achho Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 56. Mangan Paswan Son Of Ishari Paswan Resident Of Village- Sabalpur, P.S.- Khagaria, District- Khagaria 57. Prithvi Singh Son Of Jitendra Narayan Singh Resident Of Marar, P.S.- Khagaria, Dist.- Khagaria 58. Tufani Sah Son Of Late Medini Sah Resident Of Village- Nauatoli, P.S.- Khagaria, District- Munger 59. Vijay Sah Son Of Late Medini Sah Resident Of Village- Nauatoli, P.S.- Khagaria, District- Munger .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Nawal Kishore Singh & Mr. Binoy Kumar For the Respondent/s : Mr. Nand Bansh Narayan Singh & Mr. Raj Dular ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 5 22-07-2013 The present application under Article 227 of the Constitution of India has been filed seeking quashing of the order 4
Legal Reasoning
Patna High Court CWJC No.4902 of 2013 (5) 4 / 10 dated 2.2.2013 passed by learned Sub-Judge-Ist, Khagaria in Title Execution Case No. 11 of 1986, whereby the petitioner’s application filed under Order XXI Rules 97, 99 and 100 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the Code) came to be rejected. Certain facts are not in dispute. The respondents filed the Title Suit No. 103/1997/3/1978 for declaration of tile over the suit land as mentioned in Schedule I of the plaint and for confirmation of possession over the suit land described in Schedule III of the plaint. They had also sought for recovery of possession of land appertaining to Plot No. 2823 described in Schedules II and IV of the plaint. Petitioner, Sikandar Paswan is son of one Dukha Paswan. Sons of Dukha Paswan were parties to the said suit as some of the defendants. One Kola Paswan was also impleaded as a defendant and was described as son of Dukha Paswan. In course of trial said Kola Paswan did not appear nor any pairvi was done on his behalf. The said title Suit finally came to be decreed in favour of the plaintiffs, who are respondents in the present application, by judgment and decree dated 14.9.1983 and 23.9.1983. The said judgment and decree were subsequently affirmed by learned Additional District Judge, Munger in Title 5 Patna High Court CWJC No.4902 of 2013 (5) 5 / 10 Appeal No. 27/2003/3/1985 by a judgment and decree dated 14.10.1985. Second appeal too came to be dismissed by an order dated 11.3.2010 as it abated as a whole. Special Leave petition before the Supreme Court against the order dated 11.3.2010 passed in SA No. 75 of 1986 was also dismissed. In the meanwhile, the plaintiffs filed Title Execution Case No. 11 of 1986. The case of the petitioner is that he does not reside in a home village where the property is situate. He was not impleaded a party to the suit in any capacity. He had no knowledge about the institution of the suit or judgment and decree passed in such suit. His further case is that Dukha Paswan had three sons and they were separate in mess and for all purposes and the petitioner was intentionally not informed by them as regards institution of the suit or subsequent developments. His further case is that in the first week of August, 2012 the petitioner learnt about the litigation over the ancestral property including the residential house situated at Plot No. 2823 and he filed an application on 18.8.2012 raising objection under Order XXI Rules 97,99 and 100 of the Code. This is also not in dispute that the plaintiffs in reply to the objection filed by the petitioner Sikandar Paswan, filed a rejoinder to the effect that this petitioner Sikandar Paswan had alias name of 6 Patna High Court CWJC No.4902 of 2013 (5) 6 / 10 Kola Paswan and Kola Paswan was a party to the suit as defendant. Petitioner disputes the fact that Kola Paswan is his alias name and thus the contention is that he not was a party to suit and the decree passed in such suit is not executable as against him. Dealing with the objection filed by the petitioner under Order XXI Rules 97,99 and 100 of the Code, learned court below while rejecting the objection recorded in the impugned order dated 2.2.2013 that five sons of Dukha Paswan were already impleaded in the original suit as defendants. Raising a question as to what the petitioner was doing for all these thirty five years, learned Court below answered it with the conclusion that there was no explanation put forth by the petitioner and, accordingly, turned down the objection.
Legal Reasoning
Mr. Nawal Kishore Singh, learned counsel appearing on behalf of the petitioner contends with reference to the provisions under Order XXI Rules 97,99 and 100 of the Code that it was incumbent upon the Court below to have caused an inquiry as to whether Kola Paswan was the alias name of the petitioner Sikandar Pawan; whether there existed any person in the name of Kola Paswan or not and if there was any person in the name of Kola Paswan being alias name of the petitioner, whether summons 7 Patna High Court CWJC No.4902 of 2013 (5) 7 / 10 was in fact served upon him or not? He submits that there could be no occasion for Kola Paswan going unrepresented in spite of service of notice, particularly when his father Dukha Paswan was already there on record and was representing his case. He submits that in fact there was no person in the name of Kola Paswan existing. In support of his submission, he contends that not only that no written statement was filed on behalf of the said Kola Paswan, no title appeal nor second appeal was preferred by him against the judgment and decree passed in favour of the plaintiffs. In such circumstance, he submits that these aspects should have been adjudicated upon by the executing Court in exercise of power under Order XXI Rules 97,99 and 100 of the Code. He submits that under Order XXI Rule 99 of the Code, on an application made by a person resisting dispossession by the decree holder, the executing Court has a duty to adjudicate upon such objection in accordance with the provisions as contained in Order XXI of the Code. Learned counsel appearing on behalf of the respondents, on the other hand, has submitted that this application under Article 227 of the Constitution of India deserves to be dismissed on the ground that the petitioner suppressed the material fact of dismissal of Special Leave Petition by the Supreme Court against the order 8 Patna High Court CWJC No.4902 of 2013 (5) 8 / 10 passed in second appeal by this Court. He submits that the executing Court has a duty to execute the decree and it could not have gone behind the decree and, therefore, it rightly rejected the application filed on behalf of the petitioner. He further submits that if according to the petitioner, the decree was obtained fraudulently, he had the option to challenge the same by filing a separate suit. The kind of objection raised in the execution case, according to him is not permissible and the Court below rightly rejected the application. Before deliberating upon the rival submissions, provisions under Order XXI Rules 97, 99,100 and 101 of the Code need to be looked into Order XXI Rule 97 deals with a situation where the holder of a decree for possession of immovable property files an application in case execution of a decree is resisted or obstructed. This provision casts a duty upon the Court in such circumstance to adjudicate upon such application. Order XXI Rule 99 of the Code deals with a situation where any person other than the judgment-debtor is dispossessed of immovable property by a holder of a decree for the possession of such property and properties casts an obligation on the executing Court of adjudication of an application filed in such circumstance. Order XXI Rule 101 of the Code contemplates that all questions ( 9 Patna High Court CWJC No.4902 of 2013 (5) 9 / 10 including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Order XXI Rule 97 or Order XXI Rule 99 shall be determined by the Court dealing with the application, and not by a separate suit. A conjoint reading of Order XXI Rules 99 and Order XXI Rule 101 of the Code will lead to an, irresistible conclusion that on an application filed by a person resisting execution, other than judgment-debtor, the executing Court is duty bound to adjudicate upon such questions arising between the parties. In the present case, I find that there is absolutely no adjudication by the Court below on the application filed by the petitioner. The sole reason assigned for rejection of the application is that there is no reasonable explanation put forth by the petitioner for delay in approaching the executing Court. In my opinion, in view of the nature of controversy, the executing Court ought to have decided the question at least as to whether Kola Paswan was alias name of Sikandar Pawan and if so, summons were served upon Kola Paswan or not. In my view, the Court below has wrongly held that Order XXI Rule 99 of the Code is not applicable. As has been discussed above, in a situation, where a person other than the judgment debtor is dispossessed or 10 Patna High Court CWJC No.4902 of 2013 (5) 10 / 10 threatened to be dispossessed from immovable property in execution of a decree applies to the executing Court complaining all such dispossession, the Court below is obliged to adjudicate upon such dispute. Whether he was a judgment debtor at all was at least the question for the executing Court which required to be adjudicated upon.
Decision
In view of the above, the impugned order dated 2.2.2013 passed in Title Execution Suit No. 11 of 1986 is set aside. The matter is remanded back to the Court below for passing appropriate orders on the objection dated 18.8.2012 filed by the petitioner Sikandar Paswan in accordance with law. This application is, accordingly, allowed. (Chakradhari Sharan Singh, J) Arun Kumar/-